FOIA Facts: FOIA Appeals, the Unspoken Problem

Most everyone knows that in order to get records under the FOIA, you must
contact an agency, in writing and then wait for them to get you your
information. Each year, agencies publish
statistics in a report to Congress on how
many requests they get, how many of the requests were honored and how many
were denied. On the denials, agencies must announce how many appeals they
got, how many were affirmed and how many were denied.

The major difference between the statistics reported on initial requests
and appeals is that on initial requests the average amount of time it
takes an agency to answer a FOIA request is given. There is no requirement
to announce how long it takes for an appeal to be answered, and therefore
agencies to not provide this information.

Administrative appeals are necessary for requesters who have been thwarted
by agencies in honoring their FOIA requests. Many times, agencies simply
deny initial requests because they know that requesters won’t take the
time to file an administrative appeal even if the agency is aware that its
initial decision is incorrect. Other times agencies will deny records
initially because they know that by the time the appeal is adjudicated,
the material sought will not be important to the agency or the requester
and this stall tactic may keep the agency out of the media spotlight for
the time being. On other occasions, the agency may deny records even
though it is an open question on whether the reason for the denial is
valid. In these cases, it is up to the office hearing the appeal to be the
adjudicator of the law. Furthermore, once an initial denial decision is
made, it is necessary for the requester to file an administrative appeal
if the requester wishes to take the matter to court. Failure to appeal
will allow the government to dismiss a complaint for failure to exhaust
administrative remedies.

As the amount of time on how long it takes agencies to complete
administrative appeals of FOIA denials is not published, I can not provide
any analysis of statistical data on the subject. I can, however provide
anecdotal evidence that suggests that agencies are not completing
administrative appeals in a timely manner. I’ve assisted a number of
clients in appealing matters before various agencies. It is the exception
to the rule that a decision to the appeal is made in the time allowed by
statute. More often than not, a number of months (and in some cases,
years) go by before an appeal decision is made.

This delay is bad for both the government and requesters. The government
is harmed in two specific ways. The first being that the agency that fails
to respond in a timely manner loses goodwill with the public. While most
agency personnel may not actually care about that, the more goodwill the
government agencies lose (on a number of matters, not just FOIA), the
harder it is for agencies to accomplish their missions. As a non-FOIA
example, I submit that FEMA’s recent performance in Hurricane
Katrina caused it to lose a large amount of the public’s goodwill toward
it. While not responding to FOIA appeals in a timely manner do not rise to
this level of government failure, it is one area that can cause the public
to think that government agencies are not serious in
responding to their obligations under the
law.

The government is also harmed
in a much more specific way. By not responding to FOIA appeals in a timely
manner, agencies invite lawsuits of their decisions. FOIA litigation is
much more expensive to government agencies than the administrative
process. It requires involvement of Department of Justice personnel,
agency General Counsel personnel and others not usually working on day to
day FOIA matters. Additionally, those with FOIA duties are taken off those
duties to respond to the litigation. The cost of work hours lost through
litigation is not recorded. However I submit that completing FOIA appeals
(and requests for that matter) would cut agency litigation costs
noticeably.

Of course, requesters are also harmed by agency failures to respond to
appeals in a timely manner. Requesters are, in many cases, denied
information they are entitled to for many months (or years). Requesters,
in some cases, must resort to litigation to get either the documents or a
response from the government on why it is withholding the actual records.
I’ll let you in on a little secret here. Sometimes, requesters are
satisfied with a decent explanation of why they can’t have requested
records and a short summary of what is being withheld.

Agencies rarely pay attention to timely answering FOIA appeals. If they
did, requesters would feel a little more satisfied with the FOIA process,
and agencies could pay more attention to other areas of FOIA that needs
their attention. It’s time for attention to be paid to FOIA appeals.

[Editor's Note:
See also, House Report 109-226: A Citizen's Guide on Using the Freedom
of Information Act and the Privacy Act of 1974 To Request Government
Records (85 pages,
PDF), September 20. 2005.